I spoke at a seminar yesterday on Recent Developments in Employment Law. Talking to the attendees confirmed that there is still considerable angst over the new disability regulations that took effect in California in December 2012 (found in Title 2, Division 4, Chapter 2, Subchapter 9 of the California Code of Regulations). While I gave an overview before, I’ll try to spend a few posts clarifying specific issues.
Title 2 CCR section 7294.0 defines the employer’s obligation to engage in a "timely, good faith, interactive process." It identifies three situations that trigger this obligation to explore possible accommodations.
- First, and most obviously, the obligation arises when an employee requests accommodation.
- Second, the obligation arises when an employer "becomes aware of the need for an accommodation through a third party or by observation. So even if the employee doesn’t say anything, if the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform the job, the employer is required to initiate the process.
- Third (and this is the one that trips up employers the most), the employer must initiate the interactive process if an employee with a disability exhausts the leave provided under some other law (such as FMLA, CFRA, or pregnancy-disability leave) and remains unable to return to work.
Many employers believe that, if an employee exhausts the statutorily mandated leave and still can’t return to work, their job is no longer protected. And there’s a certain logic to that. After all, if the Family Medical Leave Act requires you to provide leave for up to 12 weeks, doesn’t that imply that you don’t have to provide more than that?
As these regulations explain, and last February’s decision in Sanchez v. Swissport, Inc. (which Nancy Yaffe reported on here) highlighted, that is not the case. Employer’s can’t just focus on the requirements of a single law. If an employee has exhausted FMLA leave or pregnancy disability leave, an employer still has obligations under the ADA and California’s FEHA. So if the employee can’t return to work upon the exhaustion of a disability-related leave, the employer is required to initiate the interactive process to explore whether further accommodation (perhaps additional leave) is warranted.
It’s tempting to want to cut ties with someone who’s been gone for an extended period. But don’t let your company be put in the position of having to explain why, with its considerable resources, it couldn’t let a disabled employee stay out on unpaid leave a little longer.